Applicability Of 1997 UN Watercourse Treaty In Manipur

Jiten Yumnam *

A view of Barak River : World Tourism Day photo Competition 2012 :: Pix - Shijagurumayum Deepak

Come 17th August, the United Nations will see another International treaty enforced among its array of international laws. The 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, the only treaty governing shared freshwater resources will achieve its universal applicability with the ratification of Vietnam on 19 May 2014, a country at the receiving ends of massive development interventions in the upstream portion of the mighty Mekong River.

Salient features of the new convention worth deep and careful introspection includes, "reasonable and equitable use", "duty not to cause significant harm to other watercourse states", "sharing information of watercourse in transboundary water states", "duty of notification of planned development", "procedures for consultation and cooperation", "negotiation between states" etc. However, none of South Asian countries with Trans-boundary water tussles, such as over mighty Brahmaputra River, Barak River , the Teesta River, the Ganges etc signed and ratified the treaty, first adopted by the UN General Assembly on 21 May 1997 , thus rendering the convention inapplicable as of yet. Turbulent and tough politics will decide the applicability of the new convention worldwide. The new UN treaty is unique in treating water bodies both surface and ground water as part of the water bodies, an improved understanding of water bodies, beyond rivers.

The enforcement of the Convention is much pertinent for places like Manipur and across India's North East criss-crossed by transboundary waters, and where colossal mega dams such as the much controversial 1500 MW Tipaimukh Multipurpose Hydroelectric Project is planned across the Barak River that flows beyond borders. Two of the major transboundary rivers flowing to other countries include the Manipur River that joins the Chindwin River in Burma and the Barak River originating from Senapati and reaching the Bay of Bengal after flowing through Assam and Bangladesh. The two River system are both subjected to mega dams construction, as part of India's larger policies of defining India's North East as power house of India.

For communities affected by multiple development projects over their transboundary waters, it's worth introspection if there will be any space for communities to involve in decision making and in defining the use of such waters under the Convention? Are the principles of the convention actually responding to the water concerns those impact indigenous communities' rights over their waters?

In an initial introspection, the new UN Watercourse treaty seems to be in clear contradiction and marked by dichotomy with other human rights advances in the same space at the United Nations, primarily the UN Declaration on Indigenous Peoples rights in 2007 which calls for stronger rights of indigenous peoples over their land, water and resources. With the current convention emphasizing on State's role and little provisions to ensure participation of communities in the decisions on water usage, the implementation of the new UN convention has potential to deepen human rights violations on indigenous peoples and to complicate the existing pattern of conflict in their land.

Article 5 of the Convention conferred full rights to states to define use of water and towards optimal and sustainable utilization and benefits. This convention in consideration of other UN declarations such as the UN Declaration on the Rights of Indigenous Peoples 2007 finds much contradiction over the use of water. The over emphasis of States is a matter of serious concern with development process being entrusted to business parties in all international development related negotiations marked by exclusion and disregard of ecological integrity.

Article 5 also reflects the principle of "equitable and reasonable utilization and participation", requiring State sharing an international watercourse with other States to utilize the watercourse, in its territory, in a manner that is equitable and reasonable vis-à-vis the other States sharing it. In order to ensure this, States are to take into account all relevant factors and circumstances. An indicative list of factors and circumstances is contained in article 6. While Article 6 insists on "equitable use of transboundary water courses by State", one wonders if there ever will be equitable use of water without recognizing communities' rights over land, water and resources. What does it mean by "Reasonable Equitable use", as defined by States? Given the current process, the idea of inequality as outlined in the convention is very elusive and subjected to contested concepts. The widening gap between the rich and the poor and the disproportionate concentration of wealth among the wealthy is a clear evidence of the persisting inequality in India. Will efforts for 'equality' ever led to 'equality'?

Article 6 is a big concern for communities depending on transboundary waters, as transboundary States are also bound to respect "existing and potential use of watercourse", as outlined in 6 (1) e. Reliance on Potential use concept is dangerous given reality such as the Government of India's plan to built more than 200 mega dams over the Brahmaputra Barak River basin in Manipur and in India's North East. It will also lead to legitimization of existing structures such as Farakka dam, which also provides water for West Bengal while denying water in downstream portion in Bangladesh.

The obligations for signatory states not to cause significant harm in any stretch of transboundary water course, under Article 7 of the Convention, is indeed the most significant and vital content of the policy with much relevance to Manipur. This article requires that States "take all appropriate measures to prevent the causing of significant harm" to other States sharing an international watercourse. Specific to the proposed 1500 MW Tipaimukh Dam project, the multipurpose project is widely condemned and objected in downstream portion both in Assam and in Bangladesh for its enormous potential to evoke significant and widespread environmental, social and cultural impacts downstream. Further, the project will also led to colossal destruction of forest and biodiversity in Manipur and Mizoram too. Most of the mega dams planned across North East will have significant harm in downstream portion. However, there are concerns as to who will define significant, by the "State" or "communities" affected by significant harm.

Articles 5 and 7 tend to work in tandem in the following way: if a State believes it has sustained significant harm due to a co-riparian State's use of an international watercourse, it will ordinarily raise the issue with the second State. Articles 5, 6 and 7 in effect provide that the objective is to reach a solution that is equitable and reasonable with regard to both States' uses of the watercourse and the benefits they derive from it. The possibility that the solution may include the payment of compensation, to achieve an equitable balance of uses and benefits, is not excluded. Such balancing act of transboundary states is a matter of concern due to the exclusion of indigenous communities depending on such transboundary rivers for their survival. For instance, the Indo-Bangla Sub Group formed on proposed Tipaimukh Dam in 2012 is widely condemned for its denial of community participation and lack of transparency. No one is aware what exactly transpired in those negotiations.

Article 9 and 12 on sharing data on planned activities on transboundary watercourse with possible adverse effects is important and additional aspect required to focus is the need to inform all communities depending on such water for their survival. The inclusion of the Brahmaputra Barak River System as 'classified' Rivers under India's Hydro-Meteorological Data Dissemination Policy 2013 will only lead to lack of transparency and facilitate perpetuation of unaccountability of corporate bodies with unsustainable projects. The dam building corporations building mega dams all across the rivers are notorious for their non provision of necessary information. Such policies also undermine provisions of UNDRIP and Human Rights Based Approach to development as well. Article 12 is fundamentally crucial as the data sharing on possible impact will entail conducting a cumulative impact assessment due to the proposed activities such as mega dams.

The limitation clauses outlined in National or Defense Security under Article 31 to deny information or non implementation of the convention for national or defense security is another drawback of the Convention. With mega dams like Tipaimukh dam in a International border state like Manipur and ongoing perception and pursuance of development through national security lenses and the persisting extensive militarization process in Manipur to subdue indigenous peoples right to self determination movement, the application of such provision is likely and will only lead to development injustice and for the corporate bodies to escape and debar justice process for its violations.

The arbitration and accountability framework under Article 33 to deliver justice is extremely weak and there's little possibility to resolve the existing transboundary water conflicts or those looming large in days ahead. The implementation of the Convention will also depend on the political and economic powers of countries along the water courses. There are concerns that countries like China and India will not bother to implement these provisions, with their overt initiatives to maximize power generations and water diversion from their transboundary rivers such as Brahmaputra River and Mekong Rivers etc, which will be a serious hindrance in the implementation of the convention.

UN Watercourse Convention and Manipur: The ultimate issue, how relevant and important is the new UN Water course convention in Manipur? What can communities affected by unsustainable development process planned over Transboundary Rivers in Manipur expect from the convention? The Tipaimukh dam is aggressively pursued over Barak River. Meanwhile, the Manipur Hydroelectric Power Policy 2012 also planned to build mega dams over all the tributaries of Barak River. There's much violations and arbitration of human rights of indigenous peoples by mega dams such as 105 MW Loktak HEP project and Mapithel dam. Moreover, the recommendations of the UN Special Rapporteur on Indigenous Peoples rights urged the Government of India to fully implement the provisions of the UN Declaration on the Rights of Indigenous Peoples, 2007 in all decision making on use of water, land and resources continues to be undermined.

Conclusion: The UN Water course Convention should not be implemented in isolation but should consider the UN Declaration on the Rights of Indigenous Peoples, 2007 and other human rights instruments in the implementation. The recognition of indigenous peoples' right to self determination over their land and resources and their right to self determined development should be fully recognized. No unsustainable and large scale development projects should be implemented without the free, prior and informed consent of all indigenous peoples of Manipur.

Some of the specific provision of the new UN Convention can be helpful for indigenous communities in Manipur campaigning for a participatory and rights based decision making on the use of Barak River. However, an exclusive reliance on State to define what constitutes significant harm for instance without recognizing communities rights and claims will simply make the new convention unviable. A participatory decision making process on all development intervention on transboundary waters with due recognition communities traditional rights and usage over such waters is intrinsic and crucial. The ruling of the International Court of Justice on water conflict between Argentina and Uruguay for a downstream impact assessment for any significant harm done will be much relevant for Manipur, especially in the case of proposed Tipaimukh dam over Barak River.

Any convention that undermine the rights of indigenous peoples and other marginalized communities depending on Rivers and other transboundary water bodies will only lead to inequality by impoverishing and pauperizing them. The current day development interventions on trans-boundary Rivers are marked by exclusivity and to serve interest of profit mongering business groups with protection of the State. It's high time for indigenous communities to be fully conscious of the implications of the new 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses on their rights, survival and future. The UN Declaration on the Rights of Indigenous peoples, 2007, recommendations of the World Commission on Dams, 2000 and other human rights based development standards should guide all intervention on Indigenous peoples land, water, forest and their resources.